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Brandon, Esq., Lawyer

Category: Employment Law

Satisfied Customers: 1871

Experience: Has received a certificate of recognition from the California State Senate for his outstanding legal service.

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I am a union employee working in the film industry. For the

Resolved Question:

I am a union employee working in the film industry. For the past year I have been working for an abusive supervisor, but I've been making do with the situation as the culture generally allows crazy mean people to behave any way they want. We all know this to be true and generally a person in my position is judged poorly if they can't take it.

However, late May of this year, a very horrible family crisis happened out of state. I had to ship a teenager I barely know, and who has a bad reputation, to my home, hire lawyers and doctors and spend many many hours on the phone trying to help my mother. I tried to keep this personal business limited to lunch hours, but my supervisor started truncating my lunch and breaks so I couldn't take care of anything. She was also calling me at home with weird random accusations and angry questions. I finally couldn't handle the two sources of stress simultaneously and asked my producer to release me on a family leave. He agreed and I was allowed to leave work.

I then made an appointment with a psychologist who principally works with dysfunctional families. The appointment was mostly to help me work out how to deal with everything. My anxiety level was so high I wasn't able to sort out what to do. He told me he wanted to put me on disability instead of family leave. The disability cause is anxiety and depression.

Now, a month later, I am slowly sorting through the family mess and trying to cope with the idea of returning to work. I will still be out until the end of August as it will take that long to settle my mother and nephew in their new homes and (possibly) initiate action against my brother. It's pretty ugly, but I'm beginning to be able to cope with the family thing. Now I have to figure out what to do about the work thing.

My question is this: Do I HAVE to return to the same work situation? Assuming that the position has not been filled before I return, would I be breaking the law if I found a job somewhere else? I could quit my current job and take the new one if it was offered, but I don't want to do that if it is illegal.

The psychologist did suggest at one point that he could require certain workplace rules for my return. One of which might be that I not work with that woman. However, I doubt that can actually be done. It is a large studio and has thousands of employees, but jobs aren't available all over the place. Most positions are filled.

I won't go on and on about the work situation, but it was definitely hostile and she was escalating her aggression towards me. I worked with the constant (unfair) threat of being written up and terminated. Every day there was some new issue. Almost everything was fabricated in her own mind. I expect my return would be a blood bath of carefully prepared complaints and continuing aggression. Since I expect my mother to be living with me, and possibly the adolescent nephew (who has plenty of problems) I really don't want to go back to an extremely challenging work situation if at all possible.

Thanks so much.

Oh, I haven't yet spoken to my union rep about all of this. She knows that the supervisor is a problem for her assistants but she has told me there is nothing we can do about it and that filing a grievance would be fairly useless and might even hurt my employment prospects.

First, let me say that I am terribly sorry to hear that you are in this situation. It can definitely be nerve-racking to have so many things happen all at once.

Customer:

yes

Employment-LawExpert :

Under the FMLA and the CFRA, you are allowed 12 weeks of unpaid leave in which you must be placed back into the same or similar job that you had before the leave.

Customer:

Yes, I've been told that.

Employment-LawExpert :

You ask, am I breaking the law if I found a job somewhere else. Are you asking if you can receive disability during that 12 weeks and work simultaneously for someone else?

Customer:

No. I want to get another job and go off disability. I just would like to work elsewhere and not have to go back to work with the abusive supervisor.

Employment-LawExpert :

Okay, so there are two separate issues here. The rights you have to stay on at the company, and the rights you have to leave and work elsewhere.

Employment-LawExpert :

In terms of staying, under the ADA, your job must provide you a reasonable accommodation at your work. This could moving positions. However, they are not required to do anything that would "cause an undue hardship" to them. Do you believe in your moving they would have a legitimate argument for this?

Customer:

The company sent me a letter telling me I can not take another job while on disability. I am confused by that.

Customer:

sorry, I hit send before answering your question

Customer:

They could claim an undue hardship because they need someone to do my job.

Employment-LawExpert :

So there are two different kinds of disability. There is SSI which is a government run disability which would not end, and a company disability which would end. Do you know which one you are on?

Customer:

I am on the SSI

Customer:

The psychologist put me on SSI for severe anxiety and depression. He hasn't urged medication on me yet and I hope he won't have to.

Employment-LawExpert :

Okay, then even if fired (for getting another job) you would still continue to receive benefits according to the terms of the policy. That being said, it is better to not quit this position, but rather look for a new job while on your 12 weeks of leave. The argument would be that you would not need disability if you were capable of performing other work.

Employment-LawExpert :

The SSI you are receiving is because you are to disabled to work at the moment. Once you are able to work, you would loose this benefit. Does that make sense?

Employment-LawExpert :

So, the company not letting you take another job while on disability could be for two reasons. 1) is because you are a for cause employee and there is a provision in your contract which prevents you from leaving.

Employment-LawExpert :

The other, is that they are simply informing you that you cannot both be employed and receive a paycheck and receive SSI simultaneously.

Customer:

I am looking for another job at this time, but doing it very quietly because I'm afraid of what might happen if they find out I'm looking. I am afraid I'm breaking some law by looking for work. I'm not sure but I don't think I'm prevented from leaving.

Employment-LawExpert :

Do you know if you are a for cause employee?

Customer:

People move on from these jobs all of the time. Part of the stress on me is because other people have left and she is upset about it.

Employment-LawExpert :

The only possible law that you could be breaking by looking for work is "breach of contract." This means that there is some provision in your current employment contract preventing you from leaving.

Employment-LawExpert :

If you are an at will employee then no provision would be valid.

Employment-LawExpert :

If they are unable to fire you unless for a specific reason, then it is possible that there is something in your contract which would prevent you from leaving.

Customer:

No, I can leave if I find work elsewhere. So, looking for work while on disability is not illegal? I can try to talk to the guild about my contract. I've never seen it.

Customer:

They can fire me for any reason. Editors are frequently fired for NO reason and have no recourse. A friend of mine was fired last year.

Customer:

I think if I don't return by Aug 25, they can let me go...

Employment-LawExpert :

Okay, then there is nothing illegal about looking for work. Though, I should mention that you need to stop getting benefits once you start working or you could be committing disability fraud.

Employment-LawExpert :

You would have 12 weeks from the day your leave started before they are allowed to terminate you.

Customer:

oh of course. I would not want to do anything illegal and honestly I'd rather be working than freaking out and talking long distance to family and lawyers (no offense) all day.

Employment-LawExpert :

That is completely understandable.

Customer:

Okay, so if my psychologist extended the leave past twelve weeks and my employer told me 'sorry but we have to replace you now' I'd still be collecting benefits (assuming he thinks I should still be on leave) and I could look for work?

Employment-LawExpert :

Yes, however, if the psychologist states that you no longer are disabled, or that the disability does not render you as disabled as you previously were, then you could end up loosing your benefits.

Employment-LawExpert :

Does that make sense?

Customer:

yes

Employment-LawExpert :

The second situation that I mentioned previously, is if you decide to go back to work and get a reasonable accommodation under the ADA.

Customer:

Yes, he mentioned that as well, but I don't know how they could do that.

Employment-LawExpert :

As I mentioned before, under the ADA, they must offer to make reasonable accommodations of your disability as long as it will not cause them undue hardship. Courts have stated that an "undue hardship" is something that is very difficult to prove. Obviously, they are getting along just fine without you while you are on your leave, so proving this would be extremely difficult. That being said, there could be a problem in what is considered a reasonable accomodation.

Employment-LawExpert :

Further, because it is illegal to discriminate against a person because of a disability, this persons behavior of you could lead to additional lawsuits, which the company has an interest in not allowing.

Customer:

the studio I work for is very careful with employee issues but they have a lot of leniency with union employees and the supervisor's wants are generally deemed very important and if nobody wanted me after my current boss had supposed problems they couldn't force them to work with me.

Customer:

I've had another employee tell me he'd make a statement that the supervisor treated him the same way but I don't think it would do much but make both of us unemployable in future. I really just want to get less anxious and start working again without the crazy constant hostility.

Customer:

right now I still have insomnia but I hope when I've gotten my mom situated I'll calm down a lot.

Employment-LawExpert :

That is completely understandable. Companies will oftentimes take the side of a supervisor or manager. However, companies also do not want to be a part of a retaliation lawsuit as it can cause them significant legal costs and payouts. So, you could write a letter to HR (make sure it is something in writing, certified letter, email, etc.) stating that you think you are being discriminated against because of your disability. As they know that you could follow this up with a complaint to the EEOC or DFEH, they may be more than willing to make something work for you. Would you want to go back to work here if there was not so much hostility?

Customer:

I like the company a LOT. I would love to keep working there.

Customer:

Everyone else there likes me and thinks I'm a good employee.

Employment-LawExpert :

Right now you are going through an exorbitant amount of stress. I just want to make sure that once everything has settled down you don't regret the choice to move on to a different location. Additionally, if you do not find something within the 12 weeks, then you would only be getting the amounts you could recover under disability, (or alternatively unemployment)

Employment-LawExpert :

Which is likely significantly less than the paycheck you were receiving.

Customer:

Yes, I'm aware of that. I'm really feeling the financial stress because moving my mother and getting her treatment and assessments is very expensive.

Customer:

but my living expenses are pretty low. I keep them as low as I can because of the instability of my employment.

Customer:

so I think I can manage on the SSI payments for a few months.

Employment-LawExpert :

So, if you want to try and protect your job, you can 1) request a reasonable accommodation under the ADA (this could be different work hours, a set schedule, working from home, a different supervisor, ability to take frequent breaks, etc.). You could also complain of discrimination, so that any future negative treatment could be seen as retaliation which would open the company up to back pay, front pay, emotional damages, and even punitive damages.

Customer:

I feel that you have answered my question quite sufficiently

Employment-LawExpert :

I am glad that I could get you pointed in the right direction. Is there anything else I can help you with?

Customer:

I see... okay, that gives me many more options. Thank you so much. I am very relieved to have it all set in front of me where I can manage it.

Customer:

Thank you so much.

Employment-LawExpert :

Not a problem. If you have any other questions, please do not hesitate to ask. If I have been helpful to you, please do not forget to provide a positive rating so that I may receive credit for assisting you today.

Employment-LawExpert :

I wish you the best of luck and hope that you have a wonderful rest of your day.

I will tell you that...the things you have to go through to be an Expert are quite rigorous.

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